High Court Review of Ruling Striking Race-Based Admissions Asked

The Clinton administration, citing the importance of racial
diversity in higher education, has joined the state of Texas in asking
the U.S. Supreme Court to review a federal appeals court ruling that
struck down the admissions program at the University of Texas law
school.

The March 18 ruling by a panel of the U.S. Court of Appeals for the
5th Circuit has "created substantial confusion and upheaval among
colleges and universities nationwide," the Department of Justice says
in its friend-of-the-court brief in the case of Texas v.
Hopwood.

The brief argues that higher education institutions, and
particularly law schools, have a compelling interest in maintaining a
racially diverse student body.

"At this time in the history of Texas and the United States, the
inclusion in the law school educational process of those who have
experienced ... racial-minority status, is essential to achieving
meaningful educational diversity," says the brief, which was signed by
Solicitor General Drew Days 3rd and other Justice Department
lawyers.

The Texas law school's affirmative action policy, which favored
African-American and Mexican-American applicants, was challenged by
four white applicants who were denied admission to the 1992 law school
class.

Two of the three judges on the Fifth Circuit court said the goal of
achieving racial diversity was not a valid reason to employ affirmative
action preferences. They said the policy "treats minorities as a group,
rather than as individuals."

The panel said the Supreme Court's 1978 ruling in Regents of the
University of California v. Bakke, which said colleges could use
race among several factors in admissions decisions, was no longer valid
in light of recent high court decisions that curtailed affirmative
action in government contracting. (See Education Week, March 27,
1996.)

'Predictable' Views

The appeals court's ruling has not taken effect, and Texas filed its
appeal with the Supreme Court in late April. The case gives the Clinton
administration a high-profile opportunity to express its current
thinking on affirmative action.

The Justice Department brief says that, contrary to the opinion
expressed by the appeals court, ensuring racial diversity in higher
education does not "rest on impermissible racial stereotypes."

"It does not presume that all individuals of a particular race act
or think alike," the brief argues. "An admissions program that values
racial diversity recognizes that a black (or Mexican-American) student
reared in this country is likely to have had different life
experiences, precisely because of his or her race, than an otherwise
similarly situated white student."

However, while a law school may consider race, the administration
says, it may not use "rigid numerical goals amounting to fixed quotas
... which deny each applicant's right to be treated as an individual in
the admissions process."

The brief also argues that the practical effect of the 5th Circuit
ruling would be "to return the most prestigious institutions within
state university systems to their former 'white' status."

Michael Greve, the executive director of the Center for Individual
Rights, a Washington-based legal organization that opposes affirmative
action and represents some of the white plaintiffs in the Texas case,
called the administration's views "predictable."

"There were no real surprises," he said. "If anything, it seems
rather muted."

The administration did not back one of Texas's key arguments in the
appeal: that state institutions should have wide latitude to establish
admissions standards without federal court interference. That argument
is being viewed as an appeal to the high court's recent leaning toward
strengthening states' rights.

Texas argues that the constitutional provision giving states broad
immunity against suits by individuals should bar suits brought under
Title VI of the Civil Rights Act of 1964, which bars discrimination in
educational programs.

The Justice Department rejected that idea. The department contends
that the state has no sovereign immunity from suits brought under Title
VI.

Responses from lawyers rep-resenting the white applicants were due
late last week; the high court rejected a request for an extension of
time to file those briefs. That rejection could indicate the court is
eager to address the appeal before the end of its current term late
this month or early next month.

Even if the court grants the appeal, the case would not be heard
until the next term, which begins in October.

Vol. 15, Issue 37

Notice: We recently upgraded our comments. (Learn more here.) If you are logged in as a subscriber or registered user and already have a Display Name on edweek.org, you can post comments. If you do not already have a Display Name, please create one here.

Ground Rules for Posting
We encourage lively debate, but please be respectful of others. Profanity and personal attacks are prohibited. By commenting, you are agreeing to abide by our user agreement.
All comments are public.